Rajendra Rajak vs The State Of Madhya Pradesh
2022 Latest Caselaw 3668 MP

Citation : 2022 Latest Caselaw 3668 MP
Judgement Date : 15 March, 2022

Madhya Pradesh High Court

Rajendra Rajak vs The State Of Madhya Pradesh on 15 March, 2022

Author: Rajeev Kumar Shrivastava

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       THE HIGH COURT OF MADHYA PRADESH
                BENCH GWALIOR
               MCRC No. 63904 of 2021
    (RAJENDRA RAJAK Vs THE STATE OF MP & ANR.)


Gwalior, Dated:-15/03/2022
      Shri Suresh Agrawal, learned counsel for the petitioner.

      Shri Ravindra Singh, learned Deputy Advocate General for

the respondent No. 1/State.

Shri Nitin Goyal, learned counsel for respondent No.2.

Heard on admission.

The present petition u/S.482 of Cr.P.C. has been preferred

by the petitioner assailing the interlocutory order dated 14.12.2017

passed by the Court of JMFC, Gwalior in Unregistered Criminal

Case No......./2017, whereby cognizance has been taken against

petitioner in connection with Crime No.93 of 2018 registered at

Police Station Kotwali Lashkar, District Gwalior under Sections

420, 467, 468 of IPC.

Learned counsel for the petitioner submits that the present

case is squarely covered by order dated 02/05/2019 passed by a

coordinate Bench of this Court in the matter of Dinesh Sharma

vs. State of MP and Ors [MCRC 10442 of 2019] as in the case

of Dinesh Sharma (supra), the coordinate Bench of this Court has

observed that in absence of affidavit in support of complaint, no

cognizance could be taken by Magistrate concerned and

Magistrate is not empowered to pass an order of registration of

offence and investigation in view of law laid down by Hon'ble

Apex Court in the case of Priyanka Srivastava & Another vs.

State of UP and Ors decided on 19th March, 2015 reported in

2015(6) SCC 287. In the present case also, no affidavit has been

filed by complainant in support of complaint. Therefore, prayed to

allow this petition.

Learned counsel for the State as well as complainant

opposed the contentions of the petitioner and prayed for dismissal

of this petition.

Heard the learned counsel for the parties and perused the

documents available on record.

The solitary contention raised by petitioner in support of

aforesaid challenge is that application under Section 156 (3) of

Cr.P.C. dated 11/11/2017 preferred by respondent No.2

complainant/Bank was not supported by an affidavit disclosing the

requisite steps taken by complainant of availing remedy under

Sections 154 (1), 154(3) of Cr.P.C. and thus, no cognizance could

be taken by learned Magistrate in view of law laid down by Apex

Court in the case of Priyanka Srivastava (supra).

The case need not detain this Court any furtherance as in a

case attended with similar circumstances, seeking the same relief

and based on the same grounds has been decided on 24/1/2019 in

MCRC No. 14819/2018 and MCRC No. 3369/2017, whereby this

Court has took the view which is evident from the relevant para

which is reproduced below:-

''10. After having pursued the relevant extract reproduced above in the decision of Apex Court in case of Priyanka Shrivastava (supra), it is vivid that filing of an affidavit in support of an application u/s 156 (3) of Cr.P.C. has been made mandatory, which is reflected from the anxiety of the Apex Court expressed in para-35 of its judgment whereby copy of its judgment is directed to be circulated to all the High Courts, who in turn have been requested to circulate the same to all the learned Magistrates functioning under their jurisdiction, so that the law laid down by the Apex Court is followed to the hilt. The judgment in Priyanka Shrivastava's case was delivered on 19th March, 2015 which was much before the impugned order was passed directing the police to register offences inter alia against the petitioner on the basis of application u/s 156(3) of Cr.P.C. unsupported by an affidavit.

10.1 If any contrary view is taken than the one taken in this order, it would amount to ignoring the law laid down by the Apex Court and therefore, this Court is compelled to take the view that non- filing of an affidavit alongwith an application u/s 156(3) of Cr.P.C. renders the application not maintainable, despite the complainant having disclosed to some extent the details about exhausting remedy u/s 154 of Cr.P.C. prior to filing application u/s 156(3) of Cr.P.C.

10.2 In view of the above discussion, there is no iota of doubt that the direction of the Apex Court in Priyanka Shrivastava (supra) of filing an affidavit alongwith an application u/s 156(3) of Cr.P.C. Is mandatory, noncompliance of which renders order passed u/s 156(3) of Cr.P.C. to be null and void.''

From the above analysis and the view taken by this Court in

the aforesaid cases, the absence of affidavit in support of

complaint, Sec.156(3) Cr.P.C. could not have empowered the

learned Magistrate to pass an order of registration of offence and

investigation and, therefore, the impugned order dated 14/12/2017

of the Court of JMFC is vitiated in the eyes of law.

This Court may hasten to add that allowing of this petition

and quashment of impugned order shall not come in the way of

Court of JMFC to proceed with the complaint filed by the

respondent No.2 complainant/bank u/S.200 of Cr.P.C.vide

Annexure PIV and shall also not come in the way of the

complainant/ bank to file a properly constituted application